When the Pennsylvania Supreme Court issued its ruling in the closely watched decision Roverano v. John Crane last week, the majority appeared to limit its decision to the asbestos arena for now. But, according to attorneys, the decision dealt a blow to the Fair Share Act's liability regime, and efforts to expand the holding more broadly into products liability law could further undercut the act, leading to a clash with the central holdings of the Supreme Court's game-changing products liability ruling, Tincher v. Omega Flex.

On Feb. 19, the Supreme Court ruled 6-1 to do away with the practice of having juries apportion individual liability percentages against defendants in asbestos cases, and held that courts should instead apportion liability evenly on a per capita basis for each defendant on the verdict sheet.

Part of the majority's rationale was based on the argument that juries would never be able to meaningfully make determinations about a particular defendant's culpability because experts are not yet able to trace the origins of a person's cancer with any scientific level of accuracy. The majority also held that nothing in the Fair Share Act said strict liability cases need to treated the same way as negligence cases, where juries almost always make proportional liability determinations.

"There is nothing in the act that suggests that the method of determining the ratio of liability for strict liability cases must be the same as specifically described for negligence cases alone in the prior version of 7102," Justice Sallie Mundy, who wrote the majority's opinion, said. "Absent a definitive directive by the legislature, we do not interpret the act as altering the pre-existing per capita method of apportioning liability among defendants in strict liability cases."

Before the enactment of Act 17 of 2011, often referred to as the Fair Share Act, a defendant found liable for any percentage of an incident could be made to pay the entire award. The act changed the law so defendants are only responsible for the percentage they're found liable, and can only be made to pay the full award if they are found more than 60% responsible.

The Roverano case stemmed from a lawsuit filed by William Roverano, a former PECO Energy employee, and his wife against numerous defendants over claims he was exposed to asbestos-containing products that eventually caused him to develop lung cancer. In 2016, a Philadelphia jury awarded Roverano $6.3 million.

The verdict sheet had listed eight defendants, but the jury did not determine how much each should contribute to the award. Instead the judge distributed the damages evenly between the defendants on a per capita basis. Although a three-judge Superior Court panel vacated the trial court's ruling that the Fair Share Act did not apply, the Supreme Court upheld the trial court judge's handling of that aspect of the case.

The high court also ruled that bankruptcy trusts that are either joined as third-party defendants or had entered into settlement releases with the plaintiff could be included on the verdict sheet for apportionment purposes. Therefore, the justices remanded Roverano back to the trial court to determine whether bankrupt entities that had entered into releases with the Roveranos should be included on the verdict sheet.

Several products liability attorneys said the justices were careful to focus the holdings on the facts of the case, and did not make firm pronunciations about the FSA with regard to the broader strict liability context. However, with those issues left open, attorneys expect to soon see case that will seek to expand on Roverano's holdings.

Rieders, Travis, Humphrey, Waters & Dohrmann attorney Clifford Rieders said he could see the issues being raised in some strict liability cases and cases where there are mixed theories of negligence and strict liability.

"I could see it happening in mass tort cases, or if a building or pier collapses. If there are multiple parties, you can imagine a product defendant who built the object, and then parties are there for negligence," Rieders said. "It's going to happen sooner or later. This case is going to be precedent."

Asbestos Implications

One area the ruling has had an immediate effect is in the asbestos arena. Juries who had previously been called upon to wade into liability factors for individual asbestos products will now simply only need to determine if a product was the cause of a person's injuries.

Rawle & Henderson's Peter Neeson, who is chair of the firm's environmental, toxic and mass torts department, said the ruling will affect both litigators and companies. Neeson gave the example of a plaintiff who occasionally changed asbestos-containing brakes on his car, but was also exposed almost daily to asbestos-containing furnaces and boilers where he worked. Following Roverano, the company that sold the brakes the man occasionally used would be held just as financially liable as the furnace and boiler companies.

"Now you have a threat to local Pennsylvania businesses who, before, if they were in the case, were likely to be paying in settlement a very small percentage, standing as equal to the same companies that created thousands of hours of exposure," he said, saying the ruling could lead to more bankruptcies. "The local businesses will exhaust their insurance coverage much more quickly, and will have to pay a higher cost to get out of the cases."

The added pressure to what Neeson referred to as "periphery" defendants is also likely to affect settlement and trial strategies, he said.

"It's already a difficult litigation," Neeson said. "This is making it more difficult."

However, John Kopesky of Shein Law, who represents plaintiffs, the ruling brings litigating these cases back to the way courts were handling them before the Superior Court's decision.

"The decision by the Supreme Court simply returns everyone to the position that we were in before the Superior Court's decision in Roverano," he said in an emailed statement.

Fair Share Act

Not all attorneys agree that the ruling is likely to have an effect outside asbestos litigation.

Alan Feldman and Daniel Mann of Feldman Shepherd Wohlgelernter Tanner Weinstock Dodig, said that, because of the unique scientific ambiguities that can arise in asbestos, the court's holdings won't translate well to other products liability cases where juries will be better equipped to evaluate liability.

"We think the case is limited to asbestos," Feldman said. "I don't think it's a game-changer. At all. The language utilized by the court clearly indicates this is a special rule for damages that cannot be reasonably and rationally divided between multiple defendants."

Cozen O'Connor attorney James Heller agreed that the issues related to the Fair Share Act seemed to be limited to the asbestos realm, but he said the court's holding allowing settled defendants on the verdict sheet has broad applicability, and could change the way settlements are negotiated in cases where there are several defendants but only one with deep pockets.

Although settled defendants were often previously allowed on verdict sheets, Heller said that determination was usually made on a case-by-case basis. Now with the stamp of approval from the Supreme Court, negotiations with these ancillary defendants might intensify, he said.

"It impacts settlement strategy more than anything," Heller said.

Rieders said the holdings about the verdict sheet and the per capita apportionment could also lead defendants to increasingly look for additional parties to draw into the litigation, so liability can be spread as thinly as possible.

"It will ramp up litigation in those fields where there are potentially multiple parties," he said.

Rieders agreed that the ruling struck a blow to the FSA, but he said the legislation has long been problematic for failing to take into account strict liability issues. With the Supreme Court's decision arguably leaving open questions about the FSA's applicability to products liability, he said he expects to see cases testing those lines soon.

Bradley Remick of Marshall Dennehey Warner Coleman & Goggin agreed that, with several questions left unanswered, attorneys are likely to try to push the bounds of the ruling. However, he noted that, at some point Roverano's decision removing liability apportionment considerations could eventually clash with the Supreme Court's game-changing 2014 decision in Tincher, in which the Supreme Court moved away from strict liability and began to allow parties to litigate certain fault-related issues, such as a defendant's design considerations.

Attorney from all sides, however, agree that they are still grappling with all the ramifications of Tincher, and so it still may be a long way off before lawyers figure out how Roverano is going to fit into that framework.

"I'm not fighting fights I don't have to fight yet," Remick said.